§ 19.9.1—Interpretation in General

Construction of a deed is a matter of law.460 In construing a deed, the purpose of the court is to give effect to the instrument.461 Words used in a document are to be given their plain meaning.462 The obvious meaning of plain words is the meaning to be applied, rather than a different meaning which requires the addition of unused words to modify the import of the plain words.463 Oral agreements, understandings, and conditions made contemporaneously with the execution of a deed cannot be shown to vary the terms of the deed.464 Under the doctrine of merger, a deed delivered and accepted as complete performance of a contract for the sale of land merges all prior negotiations and agreements into the deed.465

A deed must be construed in its entirety,466 to harmonize all of its provisions and give force and effect to all of its language, if possible.467 The construction of a deed should not be based upon portions presented in isolated sentences and clauses.468 In the case of an inconsistency, the granting clause prevails over the habendum clause.469 Where two deeds are conveyances of interests in the same property from the same grantee to the same grantor, the deeds must be construed together.470

If a contrary interpretation would make an instrument void or meaningless, an instrument involving property rights will be, when possible, construed as valid.471 Thus, a power to sell or encumber real property held by an attorney-in-fact with no other interest in the property is considered properly exercised by a deed executed in his or her own name without reference to the power.472


If there is an ambiguity in the terms of an instrument, then the construction must favor the grantee.473 An ambiguity is an uncertainty of the meaning of language used in a written instrument, including a deed.474 Whether an ambiguity exists is a question of law.475 In determining whether a deed is ambiguous, a trial court may conditionally admit extrinsic evidence on that issue, but if it is ultimately determined that the document is unambiguous, the conditionally admitted evidence must be stricken.476 If the language of the instrument is plain, its meaning clear, and no absurdity is involved, it must be enforced by the court as written.477 A deed which accurately and correctly describes a tract of land is not subject to construction or interpretation.478 A latent ambiguity may be resolved by extrinsic evidence,479 but extrinsic evidence is not admissible to alter, vary, explain, or change the deed.480


The paramount purpose in construing a deed is to ascertain the parties' intent.481 A deed is to be construed in accordance with the intent of the parties as determined, if possible, within the four corners of the document.482 It is only when an instrument is ambiguous that the parties' intent becomes open to interpretation.483


Recitals are introduced for the purpose of explaining why the deed is executed, or of showing circumstances which preserve the connection in the chain of title. In actions in which the purpose of the deed is directly involved, particular recitals are conclusive evidence of the facts recited. Parties to a deed are bound by the recitals in it legitimately appertaining to the subject matter.484

§ 19.9.2—Interests or Property Conveyed


Fee simple: A grantor is presumed to convey the highest estate he or she owns,485 unless a smaller estate is described.486 Thus, a conveyance is presumed to transfer a fee simple estate, unless a lesser estate is limited by express words or by operation of law.487 Words of inheritance are not required.488 A good title in fee simple means the legal estate in fee, free and clear of all claims, liens, and encumbrances, uniting all the elements constituting ownership, including the right of possession and right of property.489 A conveyance "subject to" certain matters indicates exceptions to the general rule that property is conveyed free and clear of all encumbrances and restrictions.490

A conveyance of land by general description, without any reservation of a mineral interest, passes title to both the land and the underlying mineral deposits.491 Valid reservations or exceptions of mineral rights presumptively constitute a sufficient defect in title to render a seller's title unmarketable.492

A grantee takes nothing by a deed from a grantor who has no title,493 except to the extent that the grantee's title results from the operation of the recording act. Similarly, a power of attorney to convey certain land, given by one with no interest in the land, is void.494 One who has no possessory interest in land cannot grant a license to use the land.495 A tax title cuts off all right, title, and interest of the prior owner as of the date of the tax deed, and thereafter a deed from the prior owner conveys nothing.496 A deed from a grantor having no record title is a "wild deed," and if found, may be ignored.497 If the grantor does in fact have title, the subsequent recording of the deed whereby the grantor acquired title will render the "wild deed" merely another link in the chain of title.498

Fee tail: The estate in fee tail does not exist in Colorado. Before May 25, 1983, a conveyance which, at common law, would have created an estate in fee tail created a life estate in the first grantee with a remainder in fee to the person to whom the estate would have passed on the death of the first grantee. On and after May 25, 1983, a conveyance which, at common law, would have created an estate in fee tail creates a fee simple estate in the first grantee.499

Future Interests

Whether a particular type of future interest is transferable, either by deed or by will, is a question of some complexity.500

Incidents and Appurtenances

Possession: A conveyance of real estate or any interest therein, duly executed and delivered, carries with it the right to immediate possession of the premises or interest conveyed, unless a future day for the possession is specified.501 The intention to postpone possession must appear in the conveyance itself, and cannot be proved by parol.502 No right of possession arises under a void deed.503 Occupancy under a void tax deed is a trespass.504

Appurtenances: Appurtenances normally pass as an incident to the grant.505 The word "appurtenances" has a technical meaning when used in conveyances of land. It generally refers to intangible rights, such as water rights or easements, that necessarily must be conveyed for the beneficial use of the land. The term occasionally may be used to refer to physical fixtures or improvements to land. The term also occasionally may be used to convey an interest in physical fixtures that extend beyond the land but are necessary for the use of the land.506 It does not refer to business transactions on the land.507 In a conveyance of specified land, other land does not pass as an appurtenance.508

Water rights: Whether water rights are appurtenant to land is generally a question of fact, as is also whether on a sale or transfer of the land, the water right passes as an appurtenance.509

Personal property: A deed of real property does not transfer personal property unless the personal property is described with particularity.510 In Colorado, when real property is conveyed and personal property is also transferred or used as security, it is customary to use two separate documents.511

§ 19.9.3—Exceptions and Reservations

It is undisputed that there are technical distinctions between an exception and a reservation. What is disputed is whether or not one of the two words can be used and have the meaning of the other word applied to it.512 Generally, an exception withholds from a conveyance an estate or interest in the land which has previously been severed and usually is not owned by the grantor.513 An exception need not, however, relate to an estate or interest previously severed.514 On the other hand, a reservation withdraws from the land conveyed a new and independent right or estate which is retained by the grantor.515 A reservation is a vehicle by which a grantor creates and reserves to himself or herself some right or interest in the estate conveyed, which interest had no previous existence.516 A grantor may reserve a wide variety of interests, such as easements, profits, timber, water rights, or mineral rights.517 But there can be no reservation in the absence of appropriate language.518 A dedication is not a reservation.519

Although historically a distinction has been drawn between an exception, which refers to some part of the property not included in the conveyance and with which the grantor never parts, and a reservation, which has been interpreted as the creation in the grantor of a new right or interest in the premises conveyed, Colorado case law recognizes that these terms are often used interchangeably without any intent to preserve the historical distinction, and that the historical distinction is without significance when the deed itself unambiguously manifests the intent of the parties.520 The modern conception of conveyancing looks to the intent of the grantor from a consideration of the entire instrument, and when that intent is ascertained, an exception may be construed as a reservation and vice versa.521 Reservations are construed more strictly than grants, and any ambiguities are construed against the grantor.522

Influenced, perhaps, by the printed form of warranty deed that has been used in Colorado, many grantors have inserted exceptions or reservations in the most convenient blank area available on the face of the deed form, which is in the warranty clause.523 The Colorado courts have held that an exception from the warranty is not an exception from the conveyance.524 An exception inserted into the warranty clause only protects the grantor on the warranty and does not serve as a limitation on the nature of the...

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